IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 456 OF 2019
(Arising out of S.L.P (Crl.) No. 208 of 2019)
PERIYASAMI AND ORS. ……..APPELLANTS
S. NALLASAMY ……..RESPONDENT
Hemant Gupta, J.
The benefaction interest is destined opposite an sequence upheld by a High Court of Judicature during Madras on 28.08.2018 whereby an sequence upheld by a District Munsif cum Judicial Magistrate 1 on 27.02.2015 dismissing an focus underneath Section 319 of a Code of Criminal Procedure, 19732 was set aside and a appellants were systematic to be impleaded as indicted and to be proceeded opposite in accordance with law.
1 Magistrate 2 Code
2. A First Information Report for a offences underneath Sections 147, 448, 294(b) and 506 of IPC was purebred on 29.05.2011 in pursuit of an sequence upheld by a High Court of Judicature during Madras on 26.05.2011 in a command petition filed by S. Nallasamy 3 giving instruction to register a First Information Report.
3. The Complainant married to Thangamani in a year 1998. It is purported that a mom of a Complainant would sojourn in her father’s residence generally and spasmodic she would come to Saanarpalayam. They have a daughter named Loganithya. It is also mentioned that his mom filed a assign fit that was discharged in perspective of concede when his mom and daughter came to his house. But still, his mom used to collect adult argue each day. The daughter was certified in P.K.P. Swamy Matriculation School, Kalanipuram yet a mom did not assent a daughter to write hearing and left for Ellapayalayam. His mother-in-law, father-in-law and brother-in-law threatened that their daughter will not live with him and demanded Rs. 30 lakhs towards upkeep differently they will board a dowry box opposite him and his mother.
4. On 05.05.2011 during about 11.00 AM, when he was in a residence during Nanjappangoundanur, his father-in-law Ramalingam, mother-in-law Lakshmi, brother-in-law Senthilkumar, mom Thangamani and other kin (15 women and 35 men) came by vehicles namely Maruti Van temperament Registration No. TN-33-AS-5695, TATA ACE TN-33-AT-4640 and TATA 407 TAE-9996 and forcibly entered his residence and scolded 3 Complainant him. The organisation folk were carrying weapons like crowbar, blade and ripper etc. They demanded Rs. 30 lakhs towards maintenance. One of a persons in a organisation exhorted them not to speak yet to kill. The persons came using towards them with sickles and sticks. All a indicted shouted to close a residence and took divided turmeric bundles in a dash van.
5. On a basement of such FIR, a Investigating Officer available a matter of Complainant on 29.05.2011. But nothing of a appellants in a benefaction interest were referred to in a pronounced statement. Even in a statements of other witnesses compared during a march of investigation, names of a appellants were not disclosed as a persons who were partial of a group, pronounced to have assaulted a Complainant and trespassed into his house. After execution of investigation, news underneath Section 173 of a Code was filed opposite 11 indicted on 09.11.2011.
6. The Complainant filed focus before a schooled hearing justice for serve investigations underneath Section 173(8) of a Code. Such ask was resisted by a indicted inter alia on a belligerent that a destiny investigations can be sought usually by a Investigating Officer and not by a Complainant. Such focus was discharged on 30.07.2013. Thereafter, a Complainant seemed as PW1 on 26.12.2013 disclosing a names of a appellants as partial of a organisation who barged into his residence and also pounded him. The assign also examined PW2 Loganayagi (mother of a Complainant), PW3 Murugaiyan and PW4 Jagadeesan (neighbours of a Complainant).
7. It is thereafter, an focus was filed underneath Section 319 of a Code to serve a 20 indicted persons named in a focus as additional accused. Such focus was resisted inter alia on a belligerent that identical service claimed by a Complainant in Criminal O.P. No. 1680 of 2012 filed before a High Court of Madras was discharged on 21.02.2012. Thereafter, a Complainant has filed a petition underneath Section 173 (8) of a Code that was discharged on 30.07.2013. It is also forked out that names of a due indicted were not disclosed in a First Information Report nor came to light during investigation. It is on a pronounced basement a schooled Magistrate upheld an sequence on 27.02.2015 disappearing to serve a appellants as additional accused.
8. The schooled hearing justice found that a due indicted are from opposite villages and that how a open prosecutor has given a fathers’ name and addresses of a 20 due indicted has not been disclosed. It was reason as under:
“6…. Also in a censure itself a 11 members whose name was in a final sequence and other 15 ladies and 35 organisation and 3 vehicles and dual wheelers have been mentioned. Based on that underneath Section 147, 448, 294(b), 506(2) a final sequence has been produced. Also there is no censure per hidden of turmeric bundles. Only on 11 members a final news has been produced. Totally 6 witnesses along with a postulant has been enquired. In all their statements usually those 11 members names were mentioned. So compartment a date of acquiescence of final report, no sum or information per a other 20 members have been found.
7…. Also underneath Section 319 of Cr.PC when a box is underneath swell and a chairman is indicted with correct justification or declare a justice can sequence to supplement a chairman to a indicted list and sequence to detain a chairman and enquiry. But in sequence to supplement a chairman as an indicted in a box usually saying a name and sum of a chairman is not enough, yet what crime he has committed has to be mentioned definitely. Based on doubt a justice can't supplement a chairman in a indicted list.”
9. The pronounced sequence was challenged by a Complainant by approach of a Revision Petition before a High Court. The High Court supposed a Revision Petition, inter-alia, holding as under:
“8. During trial, a defacto complainant /P.W.1, definitely settled that detached from a 11 named indicted persons shown in C.C. No. 123 of 2011, 20 other persons also concerned in a corruption and he clearly named all a 20 some-more persons. P.W.2 has settled that along with 11 named persons, 20 some-more persons also came to a stage of occurrence however, she did not discuss their names. P.W.3 has settled that other than a indicted persons, 5 other persons also came to a stage of occurrence however, he has not settled their names. P.W.4 has mentioned some of a names of a persons who committed offence.
9. From a justification of P.Ws. 1 to 4, it is really transparent that detached from a 11 named accused, some other persons also committed corruption and a District Munsif cum Judicial Magistrate, Kodumudi, unsuccessful to cruise a justification and also a range of Section 319 Cr.PC. Hence, detached from a benefaction indicted persons in C.C. No. 123 of 2011, 20 some-more persons /proposed indicted also concerned in a box and hence, they have to be decorated as accused. Under these circumstances, a visualisation in (2017) 4 Supreme Court Cases 177, Amrutbhai Shambhubhai Patel vs. Sumanbhai Kantibhai Patel and others on that faith has been placed by a schooled warn for a respondents is not germane to a contribution of a benefaction case.”
10. Learned warn for a appellants relies on a Constitution Bench visualisation of this Court in Hardeep Singh v. State of Punjab 4 to contend that compensation compulsory to plead a energy underneath Section 319 of a Code to implicate an indicted is to be exercised sparingly and usually in those cases where a resources of a box so warrant. It is usually where clever and reasoning justification occurs opposite a chairman from a justification laid before a court, such energy should be exercised and not in a infrequent and arrogant manner. The Court reason as under:
“105. Power underneath Section 319 CrPC is a discretionary and an unusual power. It is to be exercised sparingly and usually in those cases where a resources of a box so warrant. It is not to be exercised since a Magistrate or a Sessions Judge is of a opinion that some other chairman might also be guilty of committing that offence. Only where clever and reasoning justification occurs opposite a chairman from a justification led before a justice that such energy should be exercised and not in a infrequent and arrogant manner.
106. Thus, we reason that yet usually a prima facie box is to be determined from a justification led before a court, not indispensably tested on a anvil of cross-
examination, it requires most stronger justification than small luck of his complicity. The exam that has to be practical is one that is some-more than prima facie box as exercised during a time of framing of charge, yet brief of compensation to an border that a evidence, if goes unrebutted, would lead to conviction. In a deficiency of such satisfaction, a justice should refrain from sportive energy underneath Section 319 CrPC. In Section 319 CrPC a purpose of providing if “it appears from a justification that any chairman not being a indicted has committed any offence” is transparent from a difference “ for that such chairman could be attempted together with a accused”. The difference used are not “for that such chairman could be convicted”. There is, therefore, no 4 (2014) 3 SCC 92 range for a justice behaving underneath Section 319 CrPC to form any opinion as to a shame of a accused.”
11. Learned warn for a appellants also refers to a new sequence of this Court in Labhuji Amratji Thakor & Ors. v. The State of Gujarat & Anr.5, where, a sequence of summoning a additional indicted on a basement of a statements of some of a witnesses in declare box was set aside for a reason that there is not even idea of any act finished by a appellants amounting to an corruption underneath Sections 3 and 4 of a Protection of Children from Sexual Offences Act, 2012. It was reason as under:
“….The Court has to cruise piece of a evidence, that has come before it and as laid down by a Constitution Bench in Hardeep Singh (supra) has to request a test, i.e., “more than prima facie box as exercised during a time of framing of charge, yet brief of compensation to an border that a evidence, if goes unrebutted, would lead to conviction”.…”
12. We have listened schooled warn for a parties and find that a sequence upheld by a High Court is not tolerable in law. The benefaction box is fundamentally a matrimonial brawl wherein, a father who is a Complainant has leveled allegations opposite a mom and her other family members. Though in a FIR, Complainant has mentioned that 15 women and 35 organisation came by vehicles yet a names of 11 persons alone were disclosed in a First Information Report.
13. In a statements available underneath Section 161 of a Code during a march of investigation, a Complainant and his witnesses have not disclosed any other name solely a 11 persons named in 5 Criminal Appeal No. 1349 of 2018, motionless on 13.11.2018 the FIR. Thus, a Complainant has sought to expel net far-reaching so as to embody countless other persons while relocating an focus underneath Section 319 of a Code though there being primary justification about their purpose in residence tamper or of melancholy a Complainant. Large series of people will not come to a residence of a Complainant and would lapse though causing any damage as they were pronounced to be armed with weapons like crowbar, blade and ripper etc.
14. In a First Information Report or in a statements available underneath Section 161 of a Code, a names of a appellants or any other outline have not been given so as to brand them. The allegations in a FIR are deceptive and can be used any time to embody any chairman in a deficiency of outline in a First Information Report to brand such person. There is no avowal in honour of a villages to that a additional indicted belong. Therefore, there is no clever or reasoning justification to make a appellants mount a hearing for a offences underneath Sections 147, 448, 294(b) and 506 of IPC in perspective of a visualisation in Hardeep Singh box (supra). The additional indicted can't be summoned underneath Section 319 of a Code in infrequent and arrogant demeanour in a deficiency of clever and reasoning evidence. Under Section 319 of a Code additional indicted can be summoned usually if there is some-more than prima facie box as is compulsory during a time of framing of assign yet that is reduction than a compensation compulsory during a time of end of a hearing convicting a accused.
15. The High Court has set aside a sequence upheld by a schooled Magistrate usually on a basement of a statements of some of a witnesses examined by a Complainant. Mere disclosing a names of a appellants can't be pronounced to be clever and reasoning justification to make them to mount hearing for a corruption underneath Section 319 of a Code, generally when a Complainant is a father and has instituted rapist record opposite family of his in-laws and when their names or other temperament were not disclosed during a initial opportunity.
16. Consequently, a sequence upheld by a schooled High Court is set aside and that of a hearing justice is easy and a focus underneath Section 319 of a Code is dismissed. The interest is allowed.
(Dr. Dhananjaya Y. Chandrachud)
New Delhi, Mar 14, 2019